Children's Internet Protection Act (CIPA) Ruling Part 5

an independent bar to the conditional grant of federal funds"

created by c.i.p.a. Id. at 208. More specifically, they argue that by conditioning public libraries' receipt of federal funds on the use of software filters, c.i.p.a will induce public libraries to violate the First Amendment rights of Internet content-providers to disseminate const.i.tutionally protected speech to library patrons via the Internet, and the correlative First Amendment rights of public library patrons to receive const.i.tutionally protected speech on the Internet.

The government concedes that under the Dole framework, c.i.p.a is facially invalid if its conditions will induce public libraries to violate the First Amendment. The government and the plaintiffs disagree, however, on the meaning of Dole's "inducement" requirement in the context of a First Amendment facial challenge to the conditions that Congress places on state actors' receipt of federal funds. The government contends that because plaintiffs are bringing a facial challenge, they must show that under no circ.u.mstances is it possible for a public library to comply with c.i.p.a's conditions without violating the First Amendment. The plaintiffs respond that even if it is possible for some public libraries to comply with c.i.p.a without violating the First Amendment, c.i.p.a is facially invalid if it "will result in the impermissible suppression of a substantial amount of protected speech."

Because it was clear in Dole that the states could comply with the challenged conditions that Congress attached to the receipt of federal funds without violating the Const.i.tution, the Dole Court did not have occasion to explain fully what it means for Congress to use the spending power to "induce [recipients] to engage in activities that would themselves be unconst.i.tutional."

Dole, 483 U.S. at 210; see id. at 211 ("Were South Dakota to succ.u.mb to the blandishments offered by Congress and raise its drinking age to 21, the State's action in so doing would not violate the const.i.tutional rights of anyone."). Although the proposition that Congress may not pay state actors to violate citizens' First Amendment rights is unexceptionable when stated in the abstract, it is unclear what exactly a litigant must establish to facially invalidate an exercise of Congress's spending power on this ground.

In general, it is well-established that a court may sustain a facial challenge to a statute only if the plaintiff demonstrates that the statute admits of no const.i.tutional application. See United States v. Salerno, 481 U.S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circ.u.mstances exists under which the Act would be valid."); see also Bowen v.

Kendrick, 487 U.S. 589, 612 (1988) ("It has not been the Court's practice, in considering facial challenges to statutes of this kind, to strike them down in antic.i.p.ation that particular applications may result in unconst.i.tutional use of funds.") (internal quotation marks and citation omitted).

First Amendment overbreadth doctrine creates a limited exception to this rule by permitting facial invalidation of a statute that burdens a substantial amount of protected speech, even if the statute may be const.i.tutionally applied in particular circ.u.mstances. "The Const.i.tution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere. Under this principle, [a law] is unconst.i.tutional on its face if it prohibits a substantial amount of protected expression." Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1399 (2002); see also Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). This more liberal test of a statute's facial validity under the First Amendment stems from the recognition that where a statute's reach contemplates a number of both const.i.tutional and unconst.i.tutional applications, the law's sanctions may deter individuals from challenging the law's validity by engaging in const.i.tutionally protected speech that may nonetheless be proscribed by the law.

Without an overbreadth doctrine, "the contours of regulation would have to be hammered out case by case and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation." Dombrowski v. Pfister, 380 U.S.

479, 487 (1965); see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985) ("[A]n individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.").

Plaintiffs argue that the overbreadth doctrine is applicable here, since c.i.p.a "threatens to chill free speech because it will censor a substantial amount of protected speech, because it is vague, and because the law creates a prior restraint . . . ."

Unlike the statutes typically challenged as facially overbroad, however, c.i.p.a does not impose criminal penalties on those who violate its conditions. Cf. Freedom of Speech Coalition, 122 S.

Ct. at 1398 ("With these severe penalties in force, few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law."). Thus, the rationale for permitting facial challenges to laws that may be const.i.tutionally applied in some instances is less compelling in cases such as this, which involve challenges to Congress's exercise of the spending power, than in challenges to criminal statutes.

Nonetheless, "even minor punishments can chill protected speech," id., and absent the ability to challenge c.i.p.a on its face, public libraries that depend on federal funds may decide to comply with c.i.p.a's terms, thereby denying patrons access to substantial amounts of const.i.tutionally protected speech, rather than refusing to comply with c.i.p.a's terms and consequently losing the benefits of federal funds. See 47 C.F.R. Sec. 54.520(e)(1) ("A school or library that knowingly fails to ensure the use of computers in accordance with the certifications required by this section, must reimburse any funds and discounts received under the federal universal support service support mechanism for schools and libraries for the period in which there was noncompliance."). Even in cases where the only penalty for failure to comply with a statute is the withholding of federal funds, the Court has sustained facial challenges to Congress's exercise of the spending power. See, e.g., Legal Servs. Corp. v.

Velazquez, 531 U.S. 533 (2001) (declaring unconst.i.tutional on its face a federal statute restricting the ability of legal services providers who receive federal funds to engage in activity protected by the First Amendment).

The Court's unconst.i.tutional conditions cases, such as Velazquez, are not strictly controlling, since they do not require a showing that recipients who comply with the conditions attached to federal funding will, as state actors, violate others' const.i.tutional rights, as is the case under the fourth p.r.o.ng of Dole. However, they are highly instructive.

The Supreme Court's p.r.o.nouncements in the unconst.i.tutional conditions cases on what is necessary for a plaintiff to mount a successful First Amendment facial challenge to an exercise of Congress's spending power have not produced a seamless web. For example, in Rust v. Sullivan, 500 U.S. 173 (1991), the Court rejected a First Amendment facial challenge to federal regulations prohibiting federally funded healthcare clinics from providing counseling concerning the use of abortion as a method of family planning, explaining that: Pet.i.tioners are challenging the facial validity of the regulations. Thus, we are concerned only with the question whether, on their face, the regulations are both authorized by the Act and can be construed in such a manner that they can be applied to a set of individuals without infringing upon const.i.tutionally protected rights. Pet.i.tioners face a heavy burden in seeking to have the regulations invalidated as facially unconst.i.tutional. . . . The fact that the regulations might operate unconst.i.tutionally under some conceivable set of circ.u.mstances is insufficient to render them wholly invalid.

Id. at 183 (internal quotation marks, alterations, and citation omitted). In contrast, NEA v. Finley, 524 U.S. 569 (1998), which also involved a facial First Amendment challenge to an exercise of Congress's spending power, articulated a somewhat more liberal test of facial validity than Rust, explaining that "[t]o prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech." Id. at 580.

Against this background, it is unclear to us whether, to succeed in facially invalidating c.i.p.a on the grounds that it will "induce the States to engage in activities that would themselves be unconst.i.tutional," Dole, 483 U.S. at 210, plaintiffs must show that it is impossible for public libraries to comply with c.i.p.a's conditions without violating the First Amendment, or rather simply that c.i.p.a will effectively restrict library patrons'

access to substantial amounts of const.i.tutionally protected speech, therefore causing many libraries to violate the First Amendment. However, we need not resolve this issue. Rather, we may a.s.sume without deciding, for purposes of this case, that a facial challenge to c.i.p.a requires plaintiffs to show that any public library that complies with c.i.p.a's conditions will necessarily violate the First Amendment and, as explained in detail below, we believe that c.i.p.a's const.i.tutionality fails even under this more restrictive test of facial validity urged on us by the government. Because of the inherent limitations in filtering technology, public libraries can never comply with c.i.p.a without blocking access to a substantial amount of speech that is both const.i.tutionally protected and fails to meet even the filtering companies' own blocking criteria. We turn first to the governing legal principles to be applied to the facts in order to determine whether the First Amendment permits a library to use the filtering technology mandated by c.i.p.a.

3. Level of Scrutiny Applicable to Content-based Restrictions on Internet Access in Public Libraries

In a.n.a.lyzing the const.i.tutionality of a public library's use of Internet filtering software, we must first identify the appropriate level of scrutiny to apply to this restriction on patrons' access to speech. While plaintiffs argue that a public library's use of such filters is subject to strict scrutiny, the government maintains that the applicable standard is rational basis review. If strict scrutiny applies, the government must show that the challenged restriction on speech is narrowly tailored to promote a compelling government interest and that no less restrictive alternative would further that interest. United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000).

In contrast, under rational basis review, the challenged restriction need only be reasonable; the government interest that the restriction serves need not be compelling; the restriction need not be narrowly tailored to serve that interest; and the restriction "need not be the most reasonable or the only reasonable limitation." Cornelius v. NAACP Legal Def. & Educ.

Fund, 473 U.S. 788, 808 (1985).

Software filters, by definition, block access to speech on the basis of its content, and content-based restrictions on speech are generally subject to strict scrutiny. See Playboy, 529 U.S. at 813 ("[A] content-based speech restriction . . . can stand only if it satisfies strict scrutiny."). Strict scrutiny does not necessarily apply to content-based restrictions on speech, however, where the restrictions apply only to speech on government property, such as public libraries. "[I]t is . . .

well settled that the government need not permit all forms of speech on property that it owns and controls." Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). We perforce turn to a discussion of public forum doctrine.

1. Overview of Public Forum Doctrine The government's power to restrict speech on its own property is not unlimited. Rather, under public forum doctrine, the extent to which the First Amendment permits the government to restrict speech on its own property depends on the character of the forum that the government has created. See Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985). Thus, the First Amendment affords greater deference to restrictions on speech in those areas considered less amenable to free expression, such as military bases, see Greer v. Spock, 424 U.S.

828 (1976), jail grounds, see Adderley v. Florida, 385 U.S. 39 (1966), or public airport terminals, see Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), than to restrictions on speech in state universities, see Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), or streets, sidewalks and public parks, see Frisby v. Schultz, 487 U.S. 474 (1988); Hague v. CIO, 307 U.S. 496 (1939).

The Supreme Court has identified three types of fora for purposes of identifying the level of First Amendment scrutiny applicable to content-based restrictions on speech on government property: traditional public fora, designated public fora, and nonpublic fora. Traditional public fora include sidewalks, squares, and public parks: [S]treets and parks . . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of a.s.sembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

Hague, 307 U.S. at 515. "In these quintessential public forums, . . . [f]or the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Educ. a.s.s'n v. Perry Local Educs. a.s.s'n, 460 U.S.

37, 45 (1983); see also Int'l Soc'y for Krishna Consciousness, 505 U.S. at 678 ("[R]egulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny."); Frisby, 487 U.S. at 480 ("[W]e have repeatedly referred to public streets as the archetype of a traditional public forum.").

A second category of fora, known as designated (or limited) public fora, "consists of public property which the State has opened for use by the public as a place for expressive activity."

Perry, 460 U.S. at 46. Whereas any content-based restriction on the use of traditional public fora is subject to strict scrutiny, the state is generally permitted, as long as it does not discriminate on the basis of viewpoint, to limit a designated public forum to certain speakers or the discussion of certain subjects. See Perry, 460 U.S. at 45 n.7. Once it has defined the limits of a designated public forum, however, "[r]egulation of such property is subject to the same limitations as that governing a traditional public forum." Int'l Soc'y for Krishna Consciousness, 505 U.S. at 678. Examples of designated fora include university meeting facilities, see Widmar v. Vincent, 454 U.S. 263 (1981), school board meetings, see City of Madison Joint School Dist. v. Wisc. Employment Relations Comm'n, 429 U.S. 167 (1976), and munic.i.p.al theaters, see Southeastern Promotions, Ltd.

v. Conrad, 420 U.S. 546 (1975).

The third category, nonpublic fora, consists of all remaining public property. "Limitations on expressive activity conducted on this last category of property must survive only a much more limited review. The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view." Int'l Soc'y for Krishna Consciousness, 505 U.S.

at 679.

2. Contours of the Relevant Forum: the Library's Collection as a Whole or the Provision of Internet Access?

To apply public forum doctrine to this case, we must first determine whether the appropriate forum for a.n.a.lysis is the library's collection as a whole, which includes both print and electronic resources, or the library's provision of Internet access. Where a plaintiff seeks limited access, for expressive purposes, to governmentally controlled property, the Supreme Court has held that the relevant forum is defined not by the physical limits of the government property at issue, but rather by the specific access that the plaintiff seeks: Although . . . as an initial matter a speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns, forum a.n.a.lysis is not completed merely by identifying the government property at issue. Rather, in defining the forum we have focused on the access sought by the speaker. When speakers seek general access to public property, the forum encompa.s.ses that property. In cases in which limited access is sought, our cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confines of the government property.

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 801 (1985).

Thus, in Cornelius, where the plaintiffs were legal defense and political advocacy groups seeking to partic.i.p.ate in the Combined Federal Campaign charity drive, the Court held that the relevant forum, for First Amendment purposes, was not the entire federal workplace, but rather the charity drive itself. Id. at 801. Similarly, in Perry Education a.s.sociation v. Perry Local Educators' a.s.sociation, 460 U.S. 37 (1983), which addressed a union's right to access a public school's internal mail system and teachers' mailboxes, the Court identified the relevant forum as the school's mail system, not the public school as a whole.

In Widmar v. Vincent, 454 U.S. 263 (1981), in which a student group challenged a state university's restrictions on use of its meeting facilities, the Court identified the relevant forum as the meeting facilities to which the plaintiffs sought access, not the state university generally. And in Christ's Bride Ministries, Inc. v. SEPTA, 148 F.3d 242 (3d Cir. 1998), involving a First Amendment challenge to the removal of advertis.e.m.e.nts from subway and commuter rail stations, the Third Circuit noted that the forum at issue was not the rail and subway stations as a whole, but rather the advertising s.p.a.ce within the stations. Id.

at 248. Although these cases dealt with the problem of identifying the relevant forum where speakers are claiming a right of access, we believe that the same approach applies to identifying the relevant forum where the parties seeking access are listeners or readers.

In this case, the patron plaintiffs are not a.s.serting a First Amendment right to compel public libraries to acquire certain books or magazines for their print collections. Nor are the Web site plaintiffs claiming a First Amendment right to compel public libraries to carry print materials that they publish. Rather, the right at issue in this case is the specific right of library patrons to access information on the Internet, and the specific right of Web publishers to provide library patrons with information via the Internet. Thus, the relevant forum for a.n.a.lysis is not the library's entire collection, which includes both print and electronic media, such as the Internet, but rather the specific forum created when the library provides its patrons with Internet access.

Although a public library's provision of Internet access does not resemble the conventional notion of a forum as a well- defined physical s.p.a.ce, the same First Amendment standards apply.

See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 830 (1995) (holding that a state university's student activities fund "is a forum more in a metaphysical than a spatial or geographic sense, but the same principles are applicable"); see also Cornelius, 473 U.S. at 801 (identifying the Combined Federal Campaign charity drive as the relevant unit of a.n.a.lysis for application of public forum doctrine).

3. Content-based Restrictions in Designated Public Fora

Unlike nonpublic fora such as airport terminals, see Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), military bases, see Greer v. Spock, 424 U.S. 828 (1976), jail grounds, see Adderley v. Florida, 385 U.S. 39 (1966), the federal workplace, see Cornelius v. NAACP Legal Def. & Educ.

Fund, 473 U.S. 788, 805 (1985), and public transit vehicles, see Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), the purpose of a public library in general, and the provision of Internet access within a public library in particular, is "for use by the public . . . for expressive activity," Perry Educ.

a.s.s'n v. Perry Local Educs. a.s.s'n, 460 U.S. 37, 45 (1983), namely, the dissemination and receipt by the public of a wide range of information. We are satisfied that when the government provides Internet access in a public library, it has created a designated public forum. See Mainstream Loudoun v. Bd. of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552, 563 (E.D. Va. 1998); cf. Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir. 1992) (holding that a public library is a limited public forum).

Relying on those cases that have recognized that government has leeway, under the First Amendment, to limit use of a designated public forum to narrowly specified purposes, and that content-based restrictions on speech that are consistent with those purposes are subject only to rational basis review, the government argues for application of rational basis review to public libraries' decisions about which content to make available to their patrons via the Internet. See Rosenberger, 515 U.S.

819, 829 (1995) ("The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics."); Perry, 460 U.S. at 46 n.7 (1983) ("A public forum may be created for a limited purpose such as use by certain groups . . . or for the discussion of certain subjects.").

In particular, the government forcefully argues that a public library's decision to limit the content of its digital offerings on the Internet should be subject to no stricter scrutiny than its decisions about what content to make available to its patrons through the library's print collection. According to the government, just as a public library may choose to acquire books about gardening but not golf, without having to show that this content-based restriction on patrons' access to speech is narrowly tailored to further a compelling state interest, so may a public library make content-based decisions about which speech to make available on the Internet, without having to show that such a restriction satisfies strict scrutiny.

Plaintiffs respond that the government's ability to restrict the content of speech in a designated public forum by restricting the purpose of the designated public forum that it creates is not unlimited. Cf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001) ("Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise."). As Justice Kennedy has explained: If Government has a freer hand to draw content-based distinctions in limiting a forum than in excluding someone from it, the First Amendment would be a dead letter in designated public forums; every exclusion could be recast as a limitation. . . . The power to limit or redefine forums for a specific legitimate purpose does not allow the government to exclude certain speech or speakers from them for any reason at all.

Denver Area Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 801 (1996) (Kennedy, J., concurring in the judgment).

Although we agree with plaintiffs that the First Amendment imposes some limits on the state's ability to adopt content-based restrictions in defining the purpose of a public forum, precisely what those limits are is unclear, and presents a difficult problem in First Amendment jurisprudence. The Supreme Court's "cases have not yet determined . . . that government's decision to dedicate a public forum to one type of content or another is necessarily subject to the highest level of scrutiny. Must a local government, for example, show a compelling state interest if it builds a band sh.e.l.l in the park and dedicates it solely to cla.s.sical music (but not to jazz)? The answer is not obvious."

Denver, 518 U.S. at 750 (plurality opinion); see also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 572-73 (1975) (Rehnquist, J., dissenting) ("May an opera house limit its productions to operas, or must it also show rock musicals? May a munic.i.p.al theater devote an entire season to Shakespeare, or is it required to book any potential producer on a first come, first served basis?").

We believe, however, that certain principles emerge from the Supreme Court's jurisprudence on this question. In particular, and perhaps somewhat counterintuitively, the more narrow the range of speech that the government chooses to subsidize (whether directly, through government grants or other funding, or indirectly, through the creation of a public forum) the more deference the First Amendment accords the government in drawing content-based distinctions.

At one extreme lies the government's decision to fund a particular message that the government seeks to disseminate. In this context, content-based restrictions on the speech that government chooses to subsidize are clearly subject to at most rational basis review, and even viewpoint discrimination is permissible. For example, "[w]hen Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, 22 U.S.C. Sec. 4411(b), it was not const.i.tutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism." Rust v. Sullivan, 500 U.S. 173, 194 (1991); see also Velazquez, 531 U.S. at 541 ("[V]iewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or in instances, like Rust, in which the government used private speakers to transmit information pertaining to its own program.") (internal quotation marks and citation omitted).

Although not strictly controlling, the Supreme Court's unconst.i.tutional conditions cases, such as Rust and Velazquez, are instructive for purposes of a.n.a.lyzing content-based restrictions on the use of public fora. This is because the limitations that government places on the use of a public forum can be conceptualized as conditions that the government attaches to the receipt of a benefit that it offers, namely, the use of government property. Public forum cases thus resemble those unconst.i.tutional conditions cases involving First Amendment challenges to the conditions that the state places on the receipt of a government benefit. See Velazquez, 531 U.S. at 544 ("As this suit involves a subsidy, limited forum cases . . . may not be controlling in the strict sense, yet they do provide some instruction.").

Even when the government does not fund the dissemination of a particular government message, the First Amendment generally permits government, subject to the constraints of viewpoint neutrality, to create public inst.i.tutions such as art museums and state universities, dedicated to facilitating the dissemination of private speech that the government believes to have particular merit. Thus, in NEA v. Finley, 524 U.S. 569 (1998), the Court upheld the use of content-based restrictions in a federal program awarding grants to artists on the basis of, inter alia, artistic excellence. "The very a.s.sumption of the NEA is that grants will be awarded according to the artistic worth of competing applications, and absolute neutrality is simply inconceivable."

Id. at 585 (internal quotation marks and citation omitted).

Similarly, as Justice Stevens explained in his concurring opinion in Widmar v. Vincent, 454 U.S. 263 (1981), the First Amendment does not necessarily subject to strict scrutiny a state university's use of content-based means of allocating scarce resources, including limited public fora such as its meeting facilities: Because every university's resources are limited, an educational inst.i.tution must routinely make decisions concerning the use of the time and s.p.a.ce that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time one to view Mickey Mouse cartoons and the other to rehea.r.s.e an amateur performance of Hamlet the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a "compelling state interest" to defend its decision to permit one group to use the facility and not the other.

Id. at 278 (Stevens, J., concurring in the judgment).